Darrin Gruenberg v. Debra Gempeler , 697 F.3d 573 ( 2012 )


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  •                            In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 10-3391
    D ARRIN G RUENBERG ,
    Plaintiff-Appellant,
    v.
    D EBRA G EMPELER, Captain, et al.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Eastern District of Wisconsin.
    No. 09-CV-00455—William C. Griesbach, Judge.
    A RGUED A PRIL 4, 2012—D ECIDED S EPTEMBER 26, 2012
    Before E ASTERBROOK, Chief Judge, and F LAUM and
    M ANION, Circuit Judges.
    M ANION, Circuit Judge.      While incarcerated for
    burglary, Darrin Gruenberg seized a set of keys from a
    prison security guard and swallowed them. He was
    taken to a hospital, where an x-ray showed that the
    keys were lodged in his abdomen. A physician told the
    prison officials that Gruenberg would probably pass
    the keys naturally within five days. They returned him
    2                                               No. 10-3391
    to the prison and kept Gruenberg naked and in
    restraints for five days until he passed the keys. After
    five days, Gruenberg had not yet passed them and
    surgery was needed to remove them. Gruenberg sued
    the officials, claiming they violated his Eighth Amend-
    ment right to be free from cruel and unusual punishment
    by keeping him restrained for five days. The district
    court granted summary judgment in favor of the defen-
    dants, and because the officials have qualified im-
    munity, we affirm.
    I.
    On April 19, 2006, a security officer at Waupun Cor-
    rection Institution (“Waupun”) was administering med-
    ication to a prisoner, Darrin Gruenberg, 1 when
    Gruenberg pulled the officer’s arm inside his cell and
    grabbed the officer’s key ring. The key ring held three
    keys: a handcuff key, a key to activate cell doors, and a
    key for the padlock on waist restraints. The officer
    ordered Gruenberg to return the keys, but Gruenberg
    exclaimed, “watch this,” and proceeded to place each
    key into his mouth and then swallow each one.
    This set off a security alert in the prison, and the
    warden was immediately notified. Gruenberg was
    1
    Gruenberg began serving a sentence for burglary in 1999.
    Since first entering the Wisconsin Department of Corrections,
    he has accumulated more than 230 misconduct reports at
    seven different facilities. See Gruenberg v. Schneiter, 
    474 Fed. Appx. 459
     (7th Cir. 2012).
    No. 10-3391                                              3
    taken to the emergency room at Waupun Memorial
    Hospital for x-rays to determine the location of the keys.
    The x-ray confirmed that they were in his abdomen. The
    physician who treated Gruenberg believed that the
    keys would pass through his system within five days
    if Gruenberg took medication to help them pass.
    Gruenberg agreed to take the medication, and was re-
    turned to Waupun.
    The warden, the prison’s medical staff, and the
    prison’s security staff developed a protocol for Gruen-
    berg until the keys passed through his system. Gruenberg
    was placed in Waupun’s Health and Segregation
    Complex (“HSC”), the unit that houses inmates with
    pending disciplinary hearings for rule violations, who
    have been found guilty of rules violations, or who are
    in administrative confinement. During his confinement
    in the HSC, which lasted five days, he was kept naked
    and restrained for approximately 22 to 23 hours per
    day. Specifically, Gruenberg was restrained in a chair
    during the day for twelve hours, and restrained to a
    bed for twelve hours during the evening.2 The prison
    officials thought it was necessary to keep Gruenberg
    restrained to prevent him from re-swallowing the keys
    2
    Gruenberg was restrained with RIPP restraints, which are
    polypropylene belts approximately two inches wide. They are
    adjusted with Velcro closures. The restraints were placed
    around Gruenberg’s upper chest, wrists, thighs, and legs.
    4                                                  No. 10-3391
    after he had passed them.3 Twice per shift, on the first
    and second shifts, Gruenberg was released from the
    chair or bed and allowed to walk for 30 minutes.
    During the five-day period, Gruenberg complained of
    being cold and repeatedly asked for a blanket. 4 This
    request was denied because, the prison officials asserted,
    a blanket would restrict the view of security staff who
    monitored Gruenberg to ensure he was breathing. The
    prison staff also thought it was necessary to monitor
    any possible expulsion of the keys from Gruenberg, as
    one of the keys he swallowed was a master key that
    would open any restraint used in the prison and
    another key could open any cell door in the prison.
    Gruenberg was fed “nutri-loaf” (a sort of nutritional
    food loaf which does not require utensils to eat) while
    restrained, and was denied permission to brush his
    teeth or wash his hands (but was permitted to shower
    once). Gruenberg also complained that he was forced to
    lie in his own feces on two occasions, despite the offi-
    cials’ assertion that Gruenberg was allowed to use
    the bedpan and urinal whenever he asked to do so.
    The security staff checked on Gruenberg every
    15 minutes while he was restrained, and nurses from the
    3
    This has actually happened. See, e.g., Malone v. Oklahoma, 
    168 P.3d 185
    , 213 (Okla. Crim. App. 2007) (an inmate who secretly
    brought a key into jail by swallowing it retrieved it from his
    feces after passing it and then swallowed it again).
    4
    The record shows that the indoor cell temperatures of the
    area in which Gruenberg was restrained varied between
    72 degrees and 77 degrees during the five-day period.
    No. 10-3391                                                5
    prison’s Health Services Unit checked his condition
    every four hours. The HSC’s clinical staff also saw
    him regularly. All told, during the five-day period
    Gruenberg was restrained he was checked by nurses
    31 times and assessed by the clinical staff nine times.
    He was also visited by the Waupun Psychological
    Services Staff each day, who noted in several reports
    that Gruenberg was frustrated by the situation but re-
    mained cooperative.
    By April 24 (the fifth day), Gruenberg was experi-
    encing pain in his lower spine, tailbone, buttocks, and
    joints. He developed cuts and raw skin on his wrists
    and ankles from the restraints. He was taken to the
    hospital for another x-ray, which revealed that the
    keys had not moved from his abdomen. The prison
    staff then determined that Gruenberg no longer needed
    to be restrained because it was unlikely that he would
    be able to pass the keys naturally. He was placed in a
    “dry cell” in the prison’s Health Services Unit (a dry
    cell being one in which the water has been turned off
    so that the toilet does not flush). The health services
    staff could monitor Gruenberg in this cell and, being
    isolated, it was impossible for Gruenberg to pass the
    keys to another inmate if he were to expel them natu-
    rally. Additional security staff were assigned to sit outside
    Gruenberg’s cell to monitor his bowel movements to
    determine if the keys passed.
    The keys did not pass, and on April 26, Gruenberg
    was again taken to the hospital where he underwent an
    endoscopy and colonoscopy to remove the keys. The
    6                                              No. 10-3391
    endoscopy procedure successfully removed two of the
    keys, but the third key (the padlock key) remained in
    his body. Finally, on May 4, Gruenberg passed the re-
    maining key naturally.
    Gruenberg filed a pro se suit against some 25 staff
    members and officials at Waupun on May 5, 2009,
    asserting that the defendants violated his Eighth and
    Fourteenth Amendment rights under 
    42 U.S.C. § 1983
    .
    Gruenberg also filed a motion requesting the appoint-
    ment of counsel. On August 24, 2009, the district court
    denied Gruenberg’s request for counsel, finding that
    Gruenberg demonstrated his “ability to petition this
    court for redress of his grievances.” On December 17,
    2009, the defendants filed a motion for summary judg-
    ment, and on September 30, 2010, the district court
    granted summary judgment in favor of the defendants
    on all claims. The district court ruled that a trier of
    fact could find that Gruenberg’s Eighth Amendment
    rights were violated, but held that the doctrine of
    qualified immunity shielded the defendants from suit.
    Gruenberg’s Fourteenth Amendment procedural due
    process claim was dismissed on the grounds that it was
    “better conceptualized under the Eighth Amendment,”
    see Bowers v. Pollard, 
    345 Fed. Appx. 191
    , 196 (7th Cir.
    2009), not the Fourteenth Amendment. Gruenberg ap-
    pealed in February 2011, and in June 2011 we determined
    that counsel should be appointed to represent Gruen-
    berg on appeal. We issued an order striking the previously-
    filed briefs, and Gruenberg, now represented by counsel,
    filed his appeal in November 2011.
    No. 10-3391                                               7
    II.
    We review the district court’s grant of summary judg-
    ment de novo. Int’l Union v. ZF Boge Elastmetall LLC, 
    649 F.3d 641
    , 646 (7th Cir. 2011). In considering the district
    court’s grant of summary judgment, we construe all
    facts and draw all inferences in favor of Gruenberg,
    and will affirm if “the movant shows that there is no
    genuine dispute as to any material fact and the movant
    is entitled to judgment as a matter of law.” 
    Id.
    Gruenberg argues that because he was kept
    immobilized, naked, cold, and in pain for five days, the
    defendants deprived him of basic human needs and
    violated his clearly established rights under the Eighth
    Amendment. The defendants counter that the novelty of
    Gruenberg’s situation and his past history of being a
    difficult prisoner necessitated restraining Gruenberg,
    that the unique circumstances presented by Gruenberg’s
    situation demonstrate that none of the defendants
    could have been on notice that they were violating
    a clearly established constitutional right, and that the
    district court properly found that none of the defendants
    acted with deliberate indifference to Gruenberg’s needs.
    Thus, they argue, the district court correctly applied
    qualified immunity.
    We review the validity of a qualified immunity defense
    de novo. Elder v. Holloway, 
    510 U.S. 510
    , 516 (1994). Quali-
    fied immunity shields government officials from
    liability under Section 1983 “for actions taken while
    performing discretionary functions, unless their conduct
    violates clearly established statutory or constitutional
    8                                               No. 10-3391
    rights of which a reasonable person would have
    known.” Brokaw v. Mercer County, 
    235 F.3d 1000
    , 1022 (7th
    Cir. 2000). It protects “all but the plainly incompetent
    or those who knowingly violate the law. . . . If officers of
    reasonable competence could disagree on the issue [of
    whether or not an action was constitutional], immunity
    should be recognized.” Malley v. Briggs, 
    475 U.S. 335
    , 341
    (1986). To defeat a claim of qualified immunity, Gruenberg
    must show that the defendants violated a constitutional
    right and demonstrate that the right in question was
    clearly established at the time of the alleged violation.
    Saucier v. Katz, 
    533 U.S. 194
    , 201-02 (2001).
    Thus, when analyzing a qualified immunity defense,
    courts consider whether the alleged facts demonstrate
    a constitutional violation, and whether the constitu-
    tional right was clearly established. Pearson v. Callahan,
    
    555 U.S. 223
    , 232 (2009). A constitutional right is clearly
    established when “it would be clear to a reasonable
    officer that his conduct was unlawful in the situation
    he confronted.” Saucier, 533 U.S. at 202; see also Estate
    of Escobedo v. Bender, 
    600 F.3d 770
    , 779 (7th Cir. 2010)
    (“For a constitutional right to be clearly established,
    its contours must be sufficiently clear that a reasonable
    official would understand that what he is doing
    violates that right.”) (quotations omitted).
    Gruenberg claims that the defendants violated his
    constitutional right to be free from cruel and unusual
    punishment. Specifically, he argues that when the de-
    fendants restrained him naked for five days, they
    deprived him of basic human needs and thus violated
    No. 10-3391                                                   9
    his clearly established rights under the Eighth Amend-
    ment. To defeat the defense of qualified immunity,
    Gruenberg must present evidence from which the finder
    of fact could conclude that the conditions of his confine-
    ment resulted in “the denial of the minimal civilized
    measure of life’s necessities,” and that the defendants
    were “deliberately indifferent” to the conditions in
    which he was held. Townsend v. Fuchs, 
    522 F.3d 765
    , 773
    (7th Cir. 2008) (citations omitted); see also Estelle v. Gamble,
    
    429 U.S. 97
    , 104 (1976) (“deliberate indifference” to a
    prisoner’s serious medical needs is cruel and unusual
    punishment). The Eighth Amendment proscribes condi-
    tions that “involve the wanton and unnecessary inflic-
    tion of pain.” Rhodes v. Chapman, 
    452 U.S. 337
    , 347 (1981).
    The Supreme Court has held, however, that “[n]ot
    every governmental action affecting the interests or well-
    being of a prisoner is subject to Eighth Amendment
    scrutiny . . . .” Whitley v. Albers, 
    475 U.S. 312
    , 319 (1986).
    Indeed, “conduct that does not purport to be punish-
    ment at all must involve more than ordinary lack of
    due care for the prisoner’s interests or safety. . . . It is
    obduracy and wantonness, not inadvertence or error
    in good faith, that characterize the conduct prohibited
    by the Cruel and Unusual Punishments Clause . . . .” 
    Id.
    Even if we were to find, at least in some context, that
    the conditions under which Gruenberg was confined for
    five days could have amounted to cruel and unusual
    punishment, the defendants here are entitled to
    qualified immunity. As Judge Griesbach reasoned in his
    opinion, “[t]his case presents a classic situation in which
    the doctrine [of qualified immunity] is required to shield
    10                                           No. 10-3391
    officials acting in good faith in responding to a unique
    situation that involved both inmate health and prison
    security.” While the condition in which Gruenberg
    was held was undoubtedly uncomfortable, there is no
    evidence in the record that demonstrates that any
    member of the prison staff showed “deliberate indif-
    ference” to Gruenberg’s health or safety. In fact, the
    record shows otherwise—Gruenberg was monitored
    constantly to ensure that he was not in danger, and was
    visited 31 times by nurses and nine times by the
    prison’s clinical staff. The prison’s psychological staff
    also visited Gruenberg several times to check on his
    mental health. As Judge Griesbach rightly noted, such
    frequent medical and mental health monitoring is incon-
    sistent with claims that the defendants intentionally
    or recklessly subjected Gruenberg to cruel and unusual
    punishment.
    Furthermore, instead of forcing Gruenberg to undergo
    immediate surgery to remove the keys (a decision
    which could have raised more serious Eighth Amend-
    ment concerns than presented here), the defendants
    relied on the advice of a physician who thought that
    Gruenberg would pass the keys within five days. And
    while keeping Gruenberg in restraints for five days ulti-
    mately proved ineffective in light of the fact that he
    had two of the keys removed later via a colonoscopy
    and the third passed naturally while he was held unre-
    strained in a dry cell, qualified immunity protects deci-
    sions made in the moment, when the benefit of hindsight
    No. 10-3391                                                     11
    is not available.5 As we have previously held, qualified
    immunity depends “upon all the circumstances as they
    reasonably appeared to the official at the time the chal-
    lenged conduct took place.” Crowder v. Lash, 
    687 F.2d 996
    , 1006-07 (7th Cir. 1982).
    Thus, the defendants here faced what Judge Griesbach
    called an “unprecedented breach of security”: an excep-
    tionally disruptive prisoner with over 230 documented
    citations for misconduct who stole and then swallowed
    three critical security keys.6 The potential security prob-
    lems this could cause are numerous, and the defendants
    had to ensure that Gruenberg would not pass the keys
    only to re-swallow them. While a less disruptive
    prisoner may not have merited such measures, Judge
    Griesbach rightly pointed out that the defendants here
    were in “uncharted waters” and that the Eighth Amend-
    ment “does not provide a clear roadmap as to how
    5
    While our analysis here focuses on qualified immunity, we
    note that the Supreme Court rejected a post-hoc reasonableness
    approach that would deem acts as cruel and unusual punish-
    ment due to the fact that they appear to have been unneces-
    sary in hindsight. See Whitley, 
    475 U.S. at 319
     (“The infliction of
    pain in the course of a prison security measure, therefore,
    does not amount to cruel and unusual punishment simply
    because it may appear in retrospect that the degree of force
    authorized or applied for security purposes was unreasonable,
    and hence unnecessary . . . .”).
    6
    This is not the first time Gruenberg has attempted to steal a
    guard’s keys. See Gruenberg v. Schneiter, 
    474 Fed. Appx. 459
    ,
    460 (7th Cir. 2012)
    12                                                   No. 10-3391
    prison staff must treat an inmate who has swallowed a
    set of keys.” 7 Furthermore, there is no evidence that
    the defendants acted with deliberate indifference or
    recklessness towards Gruenberg’s health.8 Qualified
    immunity is intended to shield officials from liability
    when they exercise judgment, and here they exercised
    that judgment when dealing with a difficult prisoner in
    a unique situation. For those reasons, we affirm the
    district court’s grant of qualified immunity.
    Gruenberg also raises a procedural due process claim
    under the Fourteenth Amendment, arguing that he has
    7
    The district court also raises an interesting point: Gruenberg’s
    situation involved more than 25 members of the prison staff,
    none of whom evidently thought the protocol developed for
    handling Gruenberg was unreasonable. While not dispositive,
    the fact that so many individuals found Gruenberg’s treat-
    ment to be reasonable seriously undercuts Gruenberg’s claim
    that a reasonable person would have been aware that this
    conduct violated Gruenberg’s clearly established consti-
    tutional rights.
    8
    While the defendants have qualified immunity, we hasten to
    note that the confinement and treatment of Gruenberg was not
    “punishment,” let alone cruel and unusual punishment. The
    only thing unusual here was Gruenberg’s extreme behavior:
    he grabbed a guard’s arm, pulled it through the bars of his cell,
    seized the guard’s key ring, said “watch this,” and then swal-
    lowed the keys. This was obviously a serious security problem,
    and was exacerbated by Gruenberg’s extensive history of
    misbehavior. However, in a different setting, with a less
    troublesome prisoner, keeping a prisoner in near-constant
    restraints, naked, in a cell under continual observation might
    constitute cruel and unusual punishment.
    No. 10-3391                                            13
    a liberty interest in avoiding being held in restraints
    for five days and that the defendants unconstitutionally
    deprived him of that interest when he was restrained
    without notice or an opportunity to be heard. In essence,
    Gruenberg argues that his restraint was punishment
    for swallowing the keys, and that he was deprived of
    the right to have a hearing before he was placed in re-
    straints. The record is devoid of any evidence to
    support this claim, and in fact the record entirely
    supports the defendants’ contention that placing
    Gruenberg in restraints was solely out of a concern
    for security.
    Furthermore, we have found only two instances in
    which the Fourteenth Amendment’s due process clause
    created a liberty interest in the context of a prison
    sentence: a transfer to a mental hospital, see Vitek v.
    Jones, 
    445 U.S. 480
    , 493 (1980), and the involuntary ad-
    ministration of psychotropic drugs, see Washington v.
    Harper, 
    494 U.S. 210
    , 221-22 (1990). Neither is implicated
    here, and we have previously held that claims
    such as those raised by Gruenberg here “are better con-
    ceptualized under the Eighth Amendment.” Bowers, 345
    Fed. Appx. at 196. Thus, we affirm the district court’s
    grant of summary judgment in favor of the defendants
    on Gruenberg’s procedural due process claim.
    Gruenberg also argues that he should be allowed to
    advance claims against the defendants under the Fourth
    Amendment and under the Fourteenth Amendment
    substantive due process clause. However, Gruenberg
    mentions these arguments for the first time on appeal. He
    14                                              No. 10-3391
    concedes that he did not argue these issues because the
    district court refused to appoint counsel (see below).
    Nevertheless, “(i)t is a well-settled rule that a party op-
    posing a summary judgment motion must inform the
    trial judge of the reasons, legal or factual, why summary
    judgment should not be entered. If it does not do so, and
    loses the motion, it cannot raise such reasons on ap-
    peal.” Domka v. Portage County, Wis., 
    523 F.3d 776
    , 783
    (7th Cir. 2008) (quotations omitted); see also Arendt v.
    Vetta Sports, Inc., 
    99 F.3d 231
    , 237 (7th Cir. 1996) (issues
    that are not raised in the district court in response to a
    motion for summary judgment are waived on appeal).
    Furthermore, as we noted above, Gruenberg’s claims
    are better addressed under the Eighth Amendment.
    Thus, Gruenberg’s Fourth Amendment and Fourteenth
    Amendment substantive due process claims are barred.
    Finally, Gruenberg argues that the district court abused
    its discretion when it denied Gruenberg’s request for
    counsel. We review a district court’s decision to deny
    the appointment of counsel under 
    28 U.S.C. § 1915
    (e)(1)
    for an abuse of discretion, but will reverse only “upon a
    showing of prejudice.” Pruitt v. Mote, 
    503 F.3d 647
    , 659
    (7th Cir. 2009). Gruenberg repeatedly requested counsel
    to advance his claims here, and the district court denied
    those requests, finding that, in light of the numerous
    pro se lawsuits Gruenberg had filed in the past, Gruenberg
    was competent to litigate his case. “An indigent civil
    litigant may ask the district court to request an attorney
    to represent him pro bono publico.” Id. at 649. When a
    litigant requests counsel, the district court must ask
    No. 10-3391                                                    15
    (1) “has the indigent plaintiff made a reasonable attempt
    to retain counsel or been effectively precluded from
    making such efforts . . .”; and if so, (2) “given the difficulty
    of the case, did the plaintiff appear competent to try it
    himself?” Id. at 654.
    Gruenberg did attempt to seek counsel, apparently
    contacting eight different attorneys to represent him.
    When he was unable to find counsel, he petitioned the
    district court to appoint counsel, arguing that his mental
    health issues and lack of education precluded him from
    conducting discovery and from briefing a response to a
    summary judgment motion. The district court disagreed,
    holding that, despite Gruenberg’s mental health issues,
    he was competent enough to represent himself effec-
    tively and to argue his case.
    The district court noted that the facts here were not
    so complicated that a reasonable pro se litigant could
    not advance them, and that Gruenberg had filed
    numerous motions and declarations detailing what
    had happened to him and the relief he sought, belying
    his incompetence claim. In fact, the district court
    pointed out that Gruenberg’s presentation of the case
    was significantly above the capabilities of the average
    pro se litigant.9 In light of this, the district court did not
    9
    This is far from the only case Gruenberg has litigated pro se.
    He has filed at least six cases pro se in state and federal court
    alleging various violations during his incarceration. See, e.g.,
    Gruenberg v. Schneiter, 
    474 Fed. Appx. 459
     (7th Cir.); Gruenberg
    (continued...)
    16                                                No. 10-3391
    abuse its discretion by ruling that Gruenberg
    was competent to advance his case and was not entitled
    to appointed counsel.
    III.
    For the foregoing reasons, we affirm the judgment of
    the district court. The defendants are entitled to qualified
    immunity on Gruenberg’s Eighth Amendment claims.
    Gruenberg’s procedural due process claim fails, and he is
    barred from raising Fourteenth Amendment substantive
    due process or Fourth Amendment claims on appeal.
    Finally, the district court did not abuse its discretion
    when it denied Gruenberg’s request for counsel.
    A FFIRMED.
    9
    (...continued)
    v. Lundquist, 
    318 Fed. Appx. 424
     (7th Cir. 2008); and Gruenberg
    v. Pollard, No. 08-cv-0524-slc, 2008 U.S. Dist. WL 4722531
    (W.D. Wis. Oct. 22, 2008).
    9-26-12